Story updated 13 April 2020
The coronavirus pandemic should not trigger a significant increase in Deprivation of Liberty Safeguards (DoLS) cases, government guidance issued today has said.
In most cases, changes to care and treatment arising from Covid-19 for people who lack relevant capacity can be handled without the requirement for managing authorities – care homes or hospitals – to make a fresh DoLS application to the supervisory bodies – local authorities or Welsh health boards – responsible for signing them off, said the advice.
However, in cases where applications are required in an emergency, the Department of Health and Social Care (DHSC) has issued a streamlined process for doing so.
The DHSC advice, published today and applicable to England and Wales for the duration of the pandemic, is designed to minimise additional pressures on hospitals and care homes – who are at the frontline of tackling coronavirus – and on the already-stretched DoLS system.
The DoLS provide a mechanism to authorise deprivations of liberty in care settings, where a person is under continuous supervision and control and not free to leave and lacks capacity to consent.
Deprivation of liberty and life-saving treatment
In R (Ferreira) v HM Senior Coroner for Inner South London , the Court of Appeal held that there was no deprivation of liberty requiring legal authorisation under Article 5 of the European Convention on Human Rights where what is done to a patient:
- results from the administration of life-saving treatment;
- is unavoidable as a result of circumstances beyond the control of public authorities (ie the patient does not require treatment because of something done by the state);
- is necessary to avert a real risk of serious injury or damage; and
- is kept to the minimum required for the purpose of the treatment. This means the treatment must not differ from that which would be given to “a person of sound mind”.
Community Care Inform Adults users can read a full summary and analysis of the judgment and an accompanying guide on deprivation of liberty in hospital settings.
The guidance said that, as a result of Covid-19, people’s care or treatment may have to be changed, for example, to receive life-saving treatment, if they had to be moved from one care setting to another to free up beds or if they had to be isolated for theirs or others’ protection. In some cases, such arrangements may be more restrictive than previously, but in most cases a new DoLS authorisation would not be required, it added.
Drawing on the Ferreira judgment (see box, right), it said that a person would not be considered deprived of their liberty if they were receiving life-saving treatment so long as the same treatment would be given to a person without a mental impairment.
Also, the guidance added, changes to a person’s care or treatment as a result of Covid-19 would “in most cases” not constitute a new deprivation of liberty, either because the person would not be deprived of their liberty, or because they were already subject to an applicable DoLS authorisation.
In the former case, the change would require a new decision in the person’s best interests and in the latter, the existing authorisation would apply though it may be necessary to review it if the new arrangements were more restrictive.
Streamlined urgent authorisations
Where a DoLS application is required, the DHSC has provided a shortened form for making urgent authorisations – which enable managing authorities to authorise a deprivation of liberty for seven days without approval from their supervisory body – for the duration of the pandemic.
Instead of the usual seven-page form, the one-and-a-half-page alternative only asks managing authorities to confirm that the person meets the requirements for an authorisation and then set out its purpose, and does not require the additional details about the person and any interested people who should be consulted that are asked for in the current form. The form for a standard authorisation remains the same.
The guidance also said that practitioners carrying out the six DoLS assessments on behalf of supervisory bodies should conduct these remotely as far as possible, including using video calls or telephone if appropriate.
To deal with the pressures on supervisory bodies, it said assessors should also make use of information from previous assessments, if appropriate and relevant, and that assessments carried out within the previous 12 months could be relied upon without the need for a further one.
Covid-19 comes with the DoLS system under tremendous pressure, the ongoing legacy of the 2014 Cheshire West case, which effectively lowered the then threshold for what constituted a deprivation of liberty.
In 2018-19, English councils received 240,455 DoLS applications, up from 13,000 in 2013-14, with 131,350 left unfinished at the end of the year, despite a 21-day deadline for completing standard cases.
A new system for authorising deprivations of liberty, the Liberty Protection Safeguards, which is designed to streamline the system to enable more cases to be processed each year, is currently due to come into force in October of this year. However, this seems almost certain to be put back as the government is yet to publish the draft code of practice and regulations that would enable the system to be put into place and would need to be consulted upon before implementation.